BMAAAC to weigh in on Legitimacy of FN Band Elections

Band Members Alliance and Advocacy Association of Canada (BMAAAC pronounced “bee mack”) continues to make its presence known in Indigenous communities. Lately, band elections have become a hot topic. BMAAAC president, Rob Louie, commented, “BMAAAC has received numerous calls from band members that range from vote buying to discrimination to a lack of integrity in the overall election process itself.” While these claims have yet to be substantiated, it does raise awareness of the concerns about aboriginal self-government.

Take, for example, Alberta’s Saddle Lake First Nation/Whitefish Lake First Nation #128 member, Karen McCarthy, who has made repeated attempts to vote in the Whitefish Lake band election where she resides. This First Nation has a unique type of governance in that there are two elected chiefs and councils to represent two reserves, although the Department of Indigenous Services Canada does not recognize Whitefish Lake First Nation #128 as a First Nation. In spite of being a band member, she was advised at the start of their last election by Whitefish Lake Election Appeal Board Chairman, Henry Cardinal, that:

“the [Chief and Council] determined that you are a section 6(2) band member who is ineligible to vote at the upcoming election as per traditional practice and custom. It is common of the Whitefish Lake Election process that members, who gained or regained their status under Bill C-31, are not eligible to vote.”

What Saddle Lake leadership calls custom, McCarthy calls discrimination because she is considered to be a 6(2) and not a 6(1) “Indian”. BMAAAC and lawyer, Evan Duffy, have taken up McCarthy’s case to challenge the lawfulness of Saddle Lake’s custom of permitting only a certain class of members to vote in its election. Louie noted: “Voting in the Saddle Lake and/or Whitefish Lake elections shouldn’t be a result of being lucky; it is a right that every member holds.”

McCarthy was approached for comment, saying: "It is not fair that certain individuals can choose who is and who isn’t a voting band member. As a section 11 band under the Indian Act, our band membership is governed by the Department and therefore all 11, 134 registered Status members are full members of Saddle Lake Cree Nation/Whitefish Lake First Nation #128. This entitles everyone to full and equal rights to vote and run in the elections.”

Meanwhile, in Saskatchewan, Mistawasis First Nation member, Norma Johnstone, recently contacted BMAAAC to express dismay with their election. On April 7th of this month, the election result showed that Johnstone missed becoming a band councillor by just 2 votes. Unlike Saddle Lake, Mistawasis First Nation governs itself by the First Nation Election Regulations. Section 24 (2) of the Regulations makes it mandatory that if the difference between first and second place is five or fewer votes, the electoral officer must establish a date, time and place for a recount of the votes in the presence of everyone. However, the Mistawasis electoral officer allegedly treated this section as being optional and refused to do a recount. Johnstone also claims that several of her family members that are in jail were denied the right to vote for her. Johnstone will not be alone in her challenge to the Mistawasis election result. Once again, BMAAAC and lawyer, Evan Duffy, will challenge the actions of the electoral officer in federal court. Louie is also taking a closer look at the electoral officers that are running the show in many Cree band elections in Saskatchewan.

BMAAAC will soon be in the federal court of appeal on the Bertrand case to help take on the federal government. Earlier this month, Bertrand who is a band member of the Acho Koe Dene First Nation in the Yukon, challenged federal regulations that allowed chiefs and councils to extend their time in office beyond their fixed term. The federal court ruled that this regulation was invalid. The Attorney General of Canada has appealed the ruling. The federal government is also proposing to introduce legislation that would ensure that the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) were validly made since April 7, 2020. Louie echoes the words of Bertrand’s lawyer Orlagh O’Kelly: ““With legislation encroaching on the customary election process, the dispute may now involve a section 35 (self-government) constitutional question.” Louie adds that “the federal government is making an assumption that band members across Canada are fine with (their) regulation when, in fact, there is a furor about it. Just when I thought progress was being made with Indigenous autonomy, the federal government goes back to its old habit of being an interloper.”

Louie’s presidency with BMAAAC is up for election in July 2022. “The twin goals for BMAAAC were to help band members get access to justice and secure funding and both have been met. If someone else wants my spot in July 2022, that’s fine with me. I will continue to be part of BMAAAC for years to come,” Louie says with pride. A member of the Kootenay Nation in BC, Louie is a proud member of the recovery community and legal community. After being out of the legal profession for 18 years, he has applied for readmission to the BC Law Society.

BMAAAC will be aired in a 2-part series on the Aboriginal People Television Network (“APTN”) Friday, May 7th and 14th.